Abstract

There are two reasons for the existence of private defence in criminal law. The first is
the individual-protection theory, according to which private defence is aimed at
<I>protecting the particular individual&lt;/I&gt; who relies on this defence against an unlawful
attack. In this theory the individualistic notion of self-defence is predominant. One of
the effects of this theory is that a person does not have the right to assume the duties
of the police by protecting what he or she subjectively believes to be the interests of
justice. The second reason underlying the defence is that private defence <I>serves to
uphold justice</I>. Here, the emphasis is on preventing justice yielding to injustice. The
person acting in private defence acts in place of the state or police, because it is
impossible for the police always to protect everybody in society wherever they may
find themselves. At issue in all instances of private defence is the clash between justice
and injustice. This theory explains inter alia why the attack must be unlawful, why
proactive action by the attacked party is permissible, why there is no duty on the
attacked party to flee from the danger, why the attacked party must consciously act in
private defence, why one is entitled to protect also another party in private defence,
and why it is the attacking party, and not the defending party, who should carry the
risk of the consequences (death or injury) flowing from his or her action.